Volume 67 — Missouri Reports

— Hon. J. R. Woodside, Judge. 1. The indictment does not charge the offense in the language of the statute. It is evidently drawD under the 29th section ; and this court has held time and again, that, in drawing an indictment under this section, the offense must be charged to have been done “ on purpose,” which is not done in this case. This defect is not cured by the attempt of the court to try defendant under § 32 of said statute. State v. Epps, decided at this term. 2.

— Hon. G-eorse W. Bunn, Judge 1. By the act of Sept. 28th, 1850, the power to de-. termine what land should he certified as swamp land was given to the Secretary of the Interior. He speaks and acts through the heads of the various departments under his control, and did, by his subordinates, designate the land in controversy as swamp land.

— Hon. W. E. G-eiqer, Judge. 1. The defendant is entitled to have, and the State is. hound to furnish a transcript correct in all material particulars. Where the record is defective only in immaterial Tespects, a writ of certiorari cannot be awarded. By .awarding the writ in this case, this court has given, judgment that the defects are material.

Louis Court of Appeals. The case is reported in 1 Mo. App. 490.

— Hon. A. J. Seay, Judge. 1. The instrument, with which the assault was made, or the manner of making the assault, should be set out in the in'dictfii'ent. ' Beasley v. State, 18' Ala.' 535; State v. Johnson, 11 Texas 22; People v. Laois, 4 Parker Cr. Ct. 61; T East P. C. 419. 2. The verdict was changed in matter of fact material this cannot be done.

— Hon. Georse W. Miller, Judge. . 1. A writ of error is not allowed to the State in a criminal case; its remedy is by appeal. 2 Wag. Stat., p. 1112, § 1; p. 1114, §§ 13, 14. 2. No writ of error lies where an appeal is allowed, unless the former remedy be also given by express terms. Without the aid of the statute, thé State cannot review the judgment of an inferior court. People v. Casborns, 13 Johns. 351;. People v. Tarbox, 30 How. Pr. 318; People v. Dill, 1 Scam.

<p>Linn County Court of Common Pleas; appeal: supersedeas bond : stay op exeoution. By the act establishing the Linn county court of Common Pleas, (Sess. Acts 1867, p. 93), the circuit court is invested with appellate jurisdiction in cases arising in the common pleas, but it is provided that no appeal to the circuit court shall operate a stay-of execution or other proceedings in the. common pleas. A defendant having appealed from the judgment of the latter court to the circuit court, and from a judgment of affirmance there to the Supreme Court, gave a supersedeas bond to stay the ex■ecution of the judgment of the circuit court, as provided by the general law in relation to appeals, (Wag. Stat., p. 1069, § 45). Pending this appeal the plaintiff caused an execution to issue from the common pleas on the judgment there. On motion to quash, Held, 'that plaintiff was not entitled to the execution until the determination of the appeal in the Supreme Court.</p>

<p>Vendor and Purchaser: landlord and tenant: adverse possession. One who holds land under a contract of purchase cannot, by accepting a lease from a stranger, convert his holding into an adverse possession as against his vendor; and if one so holding abandons the land and afterwards re-enters under a lease from a stranger without having rescinded his contract, and without any one having in the meantime taken possession, his re-entry will be held to relate back and continue the original possession, and not to create a new and adverse possession,</p>

— Hon. Lewis P. Dinning, Judge. Tiarks v. St. D. $■ I. M. B. B. Co., 58 Mo. 45; Wag. Stat., p. 520, § 5. A highway may become such by use and prescription, and there was evidence to show that the road in this ease was in use for over thirty years. There was no highway, but merely a lane, through Evans’ farm, which he kept open or closed as he chose for his.own convenience.

— Host. HenryP.Wiiite, Judge. 1. Sec. 3, p. 511,1 Wag. Stat., is unconstitutional. The 14th amendment to the federal constitution, and section 2, article 4 of said constitution prohibits such legislation in the State. At common law, the citizen could not be put more than once in jeopardy for the same offense, and this principle has been'ingrafted into the constitution of every State and the federal government. .

<p>Constitution of 1875: executive department : state board or equalization : compensation of its members. Under the State constitution of 1875, officers of the Executive Department are not entitled to any compensation’ for services rendered by them as members of the State Board of Equalization.</p>

— IIon. H. S. Kelley, Judge. The court, on its own motion, instructed the jury as follows: 1.

<p>Appeal from Douglas Circuit Court. — Hon. J. R. Woodside, Judge.</p>

— IIon. Gilchrist Porter, Judge, 1. The fact that Purdy called himself executor occasionally, is of no moment, as he never qualified; it is no more than if he had been and called himself a justice of the peace, in connection with public administrator, only it is more easily explainable, being named executor in the will, and, in fact, if administering as public administrator, as charged, he was bound to execute the will, and, so far, was executor in fact. 2.

Louis Court of Appeals. No appeal lay from the so-called interlocutory order, but defendants duly excepted to it, and when the final judgment was rendered, they, as well as the plaintiff, appealed to general term. General term in all things reversed the judgment and remanded the cause, and plaintiff alone appealed to this court — from what ?

<p>Sheriff’s Deed: description: parol evidence. A sheriff’s deed will not be held void because the description is in part unintelligible, if the land, intended to be conveyed, can be identified by parol evidence, (following McPilcev. Allman, 53 Mo. 551).</p>

— Hon. Henry S. Kelley, Judge. contended that parol evidence was admissible to show that the land was swamp and overflowed. First. Because the plaintiff in ejectmentmust stand on his own title, and if he has none, he can have no standing in court to disturb defendant’s possession. Ilann. $ St. Jo.

Apipeal from St. Louis Court of Appeals. argued that plaintiff was not entitled to protection against the agreement between appellants and the bank, because not having paid the whole of the purchase money, he was not an innocent purchaser. Actual payment is necessary, and the giving-security or executing obligations for payment is not sufficient. High v. Butte 10 Yerg. 186 ; Christie v. Bishop, 1 Barb. Oh. 105; Murray v. Ballou, 1 John.

<p>Deed of Trust Sale: suit to redeem : statement or account : interest. In a suit, by tbe grantor in a deed of trust against the beneficiary to enforce an agreement for the redemption of improved reabestate, purchased by the latter at a sale under the deed, and subsequently sold by him to a third party, the court having found that the plaintiff was entitled to recover; Held, ¡that an account should'be stated charging defendant with the rents collected by him while he held the property, and its value at the date of the second sale, and crediting him with all taxes and necessary and reasonable repairs put upon the property, and with other necessary expenses incurred in its management, together with the amount due on the original indebtedness, and upon the balance so ascertained to be due at the date of the second sale, interest should be allowed from that time.</p>

Louis Court of Appeals. The return of the marshal is sufficient. The words, “ personal service,” have a fixed, definite and well-known meaning, and indicate that he either read or delivered a notice to the parties personally. The meaning of the officer may be gathered from the face of the return — all portions being regarded, and that is all that the law requires.

— Hon. Joseph P. Grubb, Judge. argued that if the road had been built by the company’s officers, agents and employees, it would have been liable on the doctrine of respondeat superior; but having been built by an independent contractor, who took the whole job at a stipulated price, employing and paying his own workmen, over whom the company had no control, it is not liable, citing Clark v. Hann. $ St. Jo.

<p>Appeal from Hannibal Court of Common Pleas. — IIon. John T. Redd, Judge.</p> <p>cited Tucherv. St. L. K. C. N. Pwy., 54 Mo. 181; Stephenson v. N. Y. § II. Pwy., 2 Duer 341; Cox v. Midland Counties Pwy., 3 Exch. 268; Pierce on R. R. Law, 373.</p>

<p>Appeal from, Gape Girardeau Court of Common Pleas. — ITon. H. G. Wilson, Judge.</p> <p>cited Chitty on Bills, 645, 649; Greenl. Evid., §§ 275, 276; Singleton v. Pore, 7 Mo. 516; Gooclell v. Smith, 9 Cush. 592 ; 2 Parson’s Notes & Bills, 23,122 note j, 123 note n; Schneider v. Schiffman, 20 Mo. 571.</p>

— IIon. Geo. ~W. Miller, Judge. 1. The affidavit for continuance showed sufficient cause. 2. The instruction given at the instance of respondent was clearly erroneous, because it was decisive of the case, and excluded entirely from the consideration of the jury the questions raised by the evidence of appellant. Clark v. Hammerle, 27 Mo. 55 ; Sigerson v. Pomeroy, 13 Mo. 620; Mead v. Brotherton, 30 Mo. 201; Rapp v. Vogel, 45 Mo. 524. 3.

— IIon. John W. Henry' Judge. The order was a bill of exchange within the meaning of the law, and its acceptance, in order to bind the acceptor, must have been in writing signed by him, or some one by him authorized. 1 Parsons on Bills, pp. 52, 56; Gen. St-at. of 1865, p. 395 ; Smith Merc. Law, pp. 298-9; Bousch v. Duff, 35 Mo. 312.

— Hon. George W. Miller, . ■ Judge. There was no error in permitting the witness to state the whereabouts of Moore.

Mandamus by Clark, the treasurer of Osage county, to compel Gates, the State Treasurer, to pay to Osage county her proportion of the State school funds for the year 1877. 1. Section 145, p. 1187, 2 Wag. Stat.. was rendered nugatory by the adoption of Sec. 15 of Art. 10 of the constitution of 1875. Lambeth was not bound to use the diligence required in ordinary cases, because the failure of the bank could not work a loss of the special deposits of the State funds.

Information for a Writ of Prohibition. Proceedings were instituted in the circuit court of the city-of St. Louis, before the Hon. Wilbur E. Boyle, one of the judges, upon an information filed by Alex.

— IIon. D. L. Hawkins, Judge. The execution must accurately follow tlie judgment. 1 Robinson’s Practice, p. 508; Bain v. Chisman, 27 Mo. 294; Lillington’s Case, 7 Coke 38, 59; Herman on Ex. p. 42, § 55. The judgment was doubtless merely revived against the goods and chattels, because the heirs and devisees interested in the real estate of Steinbeck were not made parties to the scire facias. Erwin's Lessee v. Dundas, 4. How. 78.

Louis Circuit Court. The case was tried before Hon. Horatio M. Jones, one of the judges. Appellants claim that each bushel of wheat was insured for $1.15, and that they have shown that 2,180 bushels were a total loss, except $109.11, or over 95 per cent., and therefore plaintiffs are entitled to recover as upon a total loss. Lockwood v. The Sangamo Ins. Co., 46 Mo. 71. The wording as to packages or parcels was printed for other goods than hulk wheat, and could not apply.

Louis Circu-'t Court. The ease was tried before Hon. James K. Knight, one of the judges. Appellants were not required to show affirmatively that the postage was prepaid on the notice of protest. Renshaw v. Triplett, 23 Mo. 220; 1 Parsons on Notes and Bills, p. 561; Sanderson v. Judge, 2 H. Bl. 509; Parker v. Gordon, 7 East 385; Bossard v. Levering, 6 Wheat. 102, All that is required of the holder of a note in demanding payment thereof, is the use of reasonable diligence.

Francois Circuit Court. — Hon. William Oar- • ter, Judge. This was a suit upon an account for materials used and labor done, in the repair of a house. The answer denied the allegations of the petition, and set up a counter claim.

<p> Petition for Habeas Corpus. </p>

<p>Error to Marion Circuit Court. — Hon. John W. Henry, Judge.</p> <p>on -the subject of estoppel generally, cited 1 Greenlf. Ev. (12th. Ed.) § 207, p. 236; Campbellv. Johnson, 44 Mo. 247; Chouteau v. Goddin, 39 Mo. 229; Taylor v. Zepp, 14 Mo. 482; .Newman v. Hook, 37 Mo. 207; Broom’s Leg. Max. (6th Am. Ed.) pp. 222, 288; 1 Story’s Eq. (7th Ed.) §§ 384, 385, p. 372; Rice v. Bunee, 49 Mo. 231; Jones v. Powell, 6 John. Ch. 194 ; Landrum v. The Union Bank, 63 Mo. 48 ; Collins v. Rogers, 63 Mo. 515 ; Evans v. Snyder, 64 Mo/516 ; Skinner v. Stouse, 4 Mo. 93; Lindell v. McLaughlin, 30 Mo. 28;. Welland Canal Co. v. Hathaway, % Wend. 480; Willing v. Brown, 7 S. & R. 467; Livingston v. Byrne, 11 Johns. 555; Huntsuckerv. Clark, 12 Mo. 333; Rutherford v. Tracy, 48 Mo. 325; Lackland v. Stevenson, 54 Mo. 108; Moreman v. Talbot, 55 Mo. 392.</p> <p>2. A doweress may be estopped from claiming dower if, by her words or conduct, she induces a purchaser to take the estate under a belief that she waives her dower. Sweany v. Mallory, 62 Mo. 485 ; 2 Scribner on Dower, 251,. 257; Dougrey v. Topping, 4 Paige 94; Smiley v. Wright, 2 Hammond (Ohio) -506; Catling v. Rodman, 6 Ind. 289; Stoney v. Bank of Charleston, 1 Rich. Eq. (S. 0.) 275 ; Ellis v. Biddy, 1 Carter (Ind.) 561; Wood v. Seely, 32 N. Y. 105 ; Lawrence v. Brown, 1 Selden (5 N. Y.) 394; Beshler v. Beerry, 4 Dali. (Pa.) 300.</p> <p>3. A person may be estopped, although ignorant of his rights. Simple silence is equally effectual with words or conduct, where one is acquainted with his rights. Hermann on Estoppel, Sec. 416, p. 417; See. 417, p. 418; Storrs v. Barker, 6 Johns. Ch. 166; Lyonv. Richmond, 2 Johns. Oh. 51; Shotwell v. Murray, 1 Johns. Oh. 512; Tilton v+ Nelson, 27 Barb. 595, and cases supra.</p>

— Hon. G. D. Burgess, Judge. 1. Whether the evidence is regarded as establishing the fact that Prichard purchased the lands in his, own name, while instructed to purchase for plaintiff, or as establishing the relation of attorney and client only, between him and the plaintiffs, in either case, the finding should have been for the plaintiffs.

— ITon. George W. Miller, Judge. 1. Persons who testify that they are well acquainted' with a person, his habits, conversations and state of mind, may testify as to- his sanity or insanity, though not experts. 2.

Mandamus to the Judges of the St. Louis Court of Appeals. The title to real estate is involved. The question is analogous to that presented by a bill in equity to remove a cloud on title to real property. Clark v. Cov. Mut. Ins. Go., 52 Mo. 272; Sullivan v. Finnegan, 101 Mass. 447; Clouston v. Shearer, 99 Mass. 209; Pettit v. Sheperd, 5 Paige 493; Christie v. líale, 46 111. 117.

— Hon. John T. Redd, Judge. The judgment was in existence at the passage of the stay law of 1861, (Laws 1860-61, p. 28, Sec; 1). This law, so far as the existing judgment was concerned, was unconstitutional. Gentry v. Baily, 1 Mo. 164; Brown v. Ward, 1 Mo. 209 ; Bumgardner v. Circuit Court, 4 Mo. 50; Stevens v. Andrews, 31 Mo. 205; Bruns v. Craioford, 34 Mo. 330 ; Donnell v. Stephens, 35 Mo. 441; Lapsley v. Brashears, 4 Litt. (Ky.) 47 ; Grayson v. Lilly, 7 Monr.

— IIon. Gilchrist Porter, Judge. This suit was brought by plaintiffs as tax-payers of tho city of St. Charles, in behalf of themselves and all other citizens of said city similarly situated, to restrain said city and its collector of taxes from collecting so much of the tax assessed for general purposes, as was in excess of the limit prescribed by the constitution of 1875.

Henry S. Kelley, Judge. This is a suit to divest the defendant of all title to the n e qr., n w qr. Sec. 15, T. 61, R. 36, in Andrew county, and to have the same vested in plaintiff, and for general relief.

G-. D. Burgess, Judge. 1. Tbe entries of Eerguson and his tenants, although made under the paramount title, stand on the same ground as though made by naked trespassers. Spalding v. May-hall, 27 Mo. 377; Hams v. Turner, 46 Mo. 438; Robinson v. Walker, 50 Mo. 19; Eilworth v. Fee, 52 Mo. 130. ■ 2.

— PIon. E. Y. Wilson, Judge. 1. A deed is deemed absolutely void if made during the existence of a.confidential relation; and the relation •of parent and child existed in this case, at the execution of the deed, and continued for sometime after, and up to the marriage of the plaintiff.

&emdash;Hon. Samuel A. Richardson, Judge. The plaintiffs being engaged in the manufacture and sale of threshing machines in Michigan, through Auter Bros. & Schutt, a firm doing business in Cameron, Missouri, sold one of their machines to defendants. The purchase money was paid partly in cash and partly in three notes. These notes were made payable at Cameron to the order of plaintiffs, and matured at different times, and were delivered to Auter Bros. & Schutt.

— Hon. G-. H. Burckhartt, Judge. argued that upon the undisputed facts there was no liability to the plaintiff for the injuries he had sustained, citing Cummings v. Collins, 61 Mo. 520; Keegan v. Kavanaugh, 62 Mo. 230 ; Wharton on Negligence, (2 Ed.) § 212; Gibson v. Erie Rwy.

— Hon. John C. Anderson, Judge. The suit was ejectment. Defendant claimed title to the land through a mortgage executed by plaintiff, and foreclosure proceedings thereunder. The county had the same right to accept the mortgage and enforce it by suit, as an individual. Gen. Stat. of 1865, p. 225, §§1,2; p. 556, § 9; p. 448, § 13; Han. $■ St. Jo. R. R. Co. v. Marion Co., 36 Mo. 294. Where the county is beneficially interested, she may purchase real estate: Linvillev.

<p>1. -A Petition under the 43rd Section of the Railroad Law, as amended in 1875, (Sess. Acts, p. 131,) is fatally defective if it fails to allege that the injury for which double damages are asked, was occasioned by the failure of the company to erect and maintain a fence.</p> <p>2. -. If the owner of cattle injured on a railroad track, sues for double damages under the 43rd section, he must recover, if at all, under that section. He cannot recover under the 5th section of the damage act, or on a cause of action at common law.</p>

G. H. Burckhartt, Judge. A final settlement is, in effect, equivalent to a judgment of a court of competent jurisdiction, and can only be set aside upon proof that the same was falsely and fraudulently obtained.

— Hon. Thomas Whitaker, Judge. 1. The question asked the witness, Black, elicited hearsay, pure and simple — a most subtle poison supplied to the jury with the approbation of the court. 2. There was no sufficient memorandum in writing under the statute of frauds. Crain’s letter neither identifies the hogs by quality, kind, age, weight or otherwise, nor names a price. Browne on the Statute of Frauds, (3 Ed.) §§ 371, 385 \ King v. Wood, 7 Mo. 389. .

<p>Practice: discretion of trial court: relieving party against negligence of his attorney. At the return term of this case defendant appeared in the trial court by his attorney, and obtained leave to answer within sixty days, during vacation. He instructed his attorney in- all the details of his defense, but the latter left the State without filing the answer, and did not return. Discovering that no answer was filed, defendant employed another attorney, who, at the beginning of the next term and before any default had been taken, presented an answer embodying an apparently meritorious defense, and with it an affidavit setting forth the foregoing facts; and asked leave of the court to file th'e answer. This was refused, and the case was continued till the following term, when judgment was rendered against the defendant; Held, that although this court is reluctant to interfere with the discretion of trial courts in relieving or refusing to relieve parties against the negligence of their attorneys, yet as the circumstances of this case indicated no want of good faith on the part of the defendant, and no inconvenience to the plaintiff was likely to arise from it, the leave should have been granted, and the refusal was error requiring the reversal ot the judgment.</p>

Louis Court of Appeals. 1. It is not the office of a constitution to engage in any matter of ordinary legislation. Its office is to lay out and establish principles of government and ordain the methods and instrumentalities of administering the laws. Cooley Const. Lim., p. 2 ; Mo. Constitution 1875, Art. 4, Sec. 1; Jameson Const. Conventions, p. 891.

— IIon. Louis F* Dinning, Judge. 1. The second clause of section 2, p. 519,1 Wag. Stat., does not continue the right of aetio'n to the plaintiff, as deceased was confessedly not a passenger, but an employee. It was not embraced in the first clause of that section, for that relates to injuries received from negligence of employees while running a train, and this action is not for such negligence, but for alleged defective road and cars.

— Hon. G-. H. Burckhartt, Judge. An execution sale under a judgment that has been paid off carries no title to a purchaser with notice. Where land is sold under an execution, which has been satisfied by the sale of other property, the deed to such land is inoperative and void. Durette v. Briggs, 47 Mo. 356; Weston v. Clark, 37 Mo. 568; Reed v. Austin, 9 Mo. 713.

— Hon. H. GL Wilson, Judge. Service of writs in partition must be had on the minors themselves. Shaw v. Gregoire, 41 Mo. 410; Gibson v. Chouteau, 39 Mo. 565 ; Fidbright v. Cannefax, 30 Mo. 425 ; Smith v. Davis, 27 Mo. 298; Waugh, v. Blumenthal, 28 Mo. 463. An order of publication can only be made by the clerk in vacation by a strict compliance with the statute.

— Hon. R. W. Ftan, Judge. I. What is claimed to be a certificate of the register in this case, is insufficient for many reasons. 1. John E. Waddill does not certify that he was at that time register of the land office at Springfield, nor was any evidence offered to show that he was. 2. The certificate does not . state that, that to which it is attached, is a copy of any entry or memoranda, on any books of the office of any register.' 3.

<p>Appeal from Knox Circuit Court. — Hon. John C. Anderson, Judge.</p> <p>cited 1 Greenl. Ev., Sec. 440, note 3.</p> <p>cited Roscoe Grim. Ev., (7 Ed.) p. 264; Chouteau v. Searcy, 8 Mo. 733; Beckham v.'Nacke, 56 Mo. 546; Donahue v. Dougherty, 5 Rawle 124.</p>

There are not three counts or causes of action set out in the petition. There is' only one — the failure to release. The pleader confounds cause and effect. The cause is the failure to release; the effect is damages, three items of which are set out in the petition — one the statutory damage, the other two what are termed special damages, which must be set out in the petition or they cannot be recovered.

<p>Appeal from Scott Circuit Court.</p>

— Hon. Gr. IT. Burck-HARTT, Judge. In every contract for the sale of lands there is'an implied warranty, yet such implied warranty exists only as long as the contract remains executory; upon the execution of the contract by deed, the law throws upon the purchaser the responsibility of caring for his own protection by suitable express covenants. Burwell v. Jackson, 5 Selden (N. Y.) 536; Rawle Cov. of Title, pp. 458,465 ; Fox v. Mackreth, 2 Bro.

Mandamus. 1. The State is liable for costs made in her own behalf, in cases in which she is a party, and where the defendant is wholly insolvent. The same rules apply in criminal, as in civil cases. 2 Wag. Stat., p. 1104, §§ 16, ' 17,18. 1. The State is not liable for costs in a ca&e where there has been a continuance at the cost of the defendant, and judgment has been rendered against him therefor. 2 Wag.

— Hon. George W. Dunn, Judge. A corporation can only exercise such powers as are specially given to it by law, or such as are necessary to carry into effect some specified powers. St. Louis v. Bus-sell, 9 Mo. 507; Blair v. Perpetual Ins. Co:, 10 Mo. 559; Buggies v. Collier, 48 Mo. 353; Matthews v. Skinker, 62 Mo. ’,329; Bank of Louisville v. Young, 37 Mo. 398 ; Hannibal $ St. Joe. B. B. Co. v. Marion Co., 36 Mo. 294; Dillon on Mun.

— Hon. G. H. Burckhartt, Judge. The instructions refused by the court were as follows: 3rd. The court, sitting as a jury, is instructed that if it finds from the evidence that the personal property of J. W. Graves, deceased, was inventoried and appraised, said appraisement was prima facie evidence of the value of said property, and if the court finds from the evidence that said Jno.

— Hon. George W. Dunn, Judge. . . . argued that a party-may lose his right of homestead by making no claim to it, or by acts -which amount to a waiver or estoppel of his claim; also that there is no homestead in personalty.

— Hon. GL Porter, Judge. Action on a special contract to recover for the pasturage of cattle.' In a suit upon a special contract, where there is no quantum meruit count in the petition, the plaintiff must show a strict compliance with the terms of his contract before he is entitled to recover, or some legal excuse for his failui’e. Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Mt. Sinai Cemetery Asso., 61 Mo. 489.

— IIon. William T. Wood, Judge. On the 9th of December, 1874, Maynard recovered judgment against the M. K. & T. Railway Company. On the following day execution was issued, and on the 18th day of January, 1875, the First National Bank of Sedalia was garnished as debtor to the company. Bond was appointed receiver of the property of the company.

<p>Appeal from Bay Circuit Court. — Hon. George W. Dunn, Judge.</p> <p>cited Kenney v. H. § St. Jo. B. B. Co., 62 Mo. 476; Grurney v. H. § St. Jo. B. B. Co., 62 Mo. 476.</p>

— IIon* H. G. Wilson, Judge. The trial court had jurisdiction in this cause against the maker of the note. 2 Wag. Stat., p.-1005, § 1; January v. Mice, 33 Mo. 409 ; Huxley v. Harrold, 62 Mo. 523. Where there is a misjoinder of causes of action, only those injured have the right to complain. Dickerson v. Ghnsmav, 28 Mo. 138.

<p>Appeal from Franklin Circuit Court. — Hon. A. J.' Seay, Judge.</p>

— Hon. Philander Luoas, Judge. 1. The law provides for tbe payment of interest not exceeding ten per cent, per annum. The proposition submitted to tbe voters of tbe township was for tbe payment of semi-annual, interest at ten per cent., which is a plain violation of the law, and a fatal objection to tbe subscription. 2. The stipulation for surrender of the stock to the company is in contravention of § 54, p. 314, Wag.

— Hon. ¥h. T. Wood, Judge. The coupon described in the first count of the petition was for interest at the rate of ten per cent., payable semiannually. 1.

— Hon. Joseph P. Grubb, Judge insisted that the petition set forth all the facts necessary to show a good cause of action. St. Louis v. Hardy, 35 Mo. 261; St. Louis v. Coons, 37 Mo. 48 ; St. Louis o. Armstrong, 38 Mo. 29 ; Kiley v. Forsee, 57 Mo. 390; Neman v. Smith, 60 Mo. 292. cited 1 Chitty on Plead, p. 236; Chaffe v. Memphis B. B. Go. 64 Mo. 193.

<p> Error to Scotland Circuit Court. </p>

<p>1. Constables: an action under the statute (2 Wag. Stat., p. 844, § 19), against a constable and Ms securities for failing to pay over money collected by Mm, is properly brought in the name of the party aggrieved.</p> <p>2. -: judgment : interest. In such an action, recovery may be had (under § 22, p. 844, 2 Wag. Stat.,) of the amount, for which the constable is delinquent, with interest thereon at the rate of one hundred per cent, per annum, but the judgment, after its date, can ■only bear interest at six per cent, per annum. (1 Wag. Stat., p. 783, § 3.)</p>

— IIon. D. L. Hawkins, Judge. • J. B. Dennis and H. B. Wilson for respondent, argued that the suit was not for a penalty, but for liquidated damages fixed by statute. Gower v. Saltmarsh, 11 Mo. 271; Coover v. Moore, 31 Mo. 574 ; James v. Christy, 18 Mo. 162; Burr. Law Diet. Title, qui tarn.

<p>Appeal from Phelps Circuit Court. — Iíon. V. B. Hill, Judge.</p>

<p>1. Criminal Law: dependant as witness: liability to impeachment. When a defendant in a criminal case testifies in his own •behalf, the State may impeach his character before he offers any evidence that it is good; his testimony is subject to the same rules and tests as that of any other witness.</p> <p>2, —-: now impeached. In impeaching a witness, evidence of his reputation for general moral character, as well as of that for truth and veracity, is admissible ; but before permitting witnesses to testify as to such reputation, they must show that they are acquainted , with it.</p>

<p>*Bill of Exceptions: motions and instructions are no part of the record, and can only be made part of it by being incorporated bodily I in a bill of exceptions. If not so incorporated, they can not be , noticed by the appellate court. Mere reference to them in the bill 1 by citing the page of the transcript on which they appear is insufficient.</p>

<p>Liability of School Treasurer for funds lost through failure of a Bank. A treasurer of a school township is liable on his official bond for school funds deposited in bank, and lost through the failure and insolvency of the bank, although he was not, guilty of any want of care or prudence in failing to ascertain its financial condition.</p>

<p>Damages, Speculative and Remote: a lease of an opera house with its scenery and appurtenances, contained a stipulation that if the lessee should, during the term, pay all back rents accrued under a former lease of the same premises, they should be restored to him. under that lease with all the rights and immunities thereof. The lessee was never put in possession under the new lease, and never paid up the back rents. In a suit against the lessor on the new lease for withholding possession, the lessee claimed to recover the value of- the old lease, as well as the new, on the ground that by withholding the possession the lessor had deprived him of the means of earning the money to pay up the back rents, and had thus prevented the restoration of the old lease; Held, that this was purely speculative and too remote to constitute an element of damages.</p>

<p>1. Street Openings: assessment of benefits : the taxing power. The assessment of benefits accruing from the opening of a street against the owners of property especially benefited by the improvement and adjacent to it, but no part of which is taken for it,' is a legitimate exercise of the taxing power, (following Garret v. St. Louis, 25 Mo. 505, and other cases).</p> <p>2. -: --: district to be assessed. The act of 1875 amending the charter of the City of St. Louis (Acts 1875, p. 820), authorized the assessment of benefits to accrue from the opening of a street against any property lying within the limits which the appraisers should determine would be especially benefited by the improvement. It did not limit them to the assessment of benefits against the city at large and the owners of lots, part of which were taken for the street.</p> <p>S. -: -: evidence. Under section 4, of the foregoing act, a person against whom benefits, were assessed, but whose land was not taken, had no right to show that the appraisers fixed an excessive valuation upon land that was taken. He could only show that his property was not benefited to the amount of the assessment.</p>

— Hon. John I). Parkinson, Judge. t 1. Under the pleadings, the ownership of the note is conceded to be in the husband, that being alleged in that part of the answer not stricken out, and not controverted by reply or otherwise. Bartholow v. Campbell, 56 Mo. 117. 2. The debt evidenced by the lost note, being a just demand against plaintiff, J. H..

— Hon. G. H. Burokhartt, Judge. Under the statute, (1 Wag. Stat., p. 72, § 13,) an administrator pendente lite is required to take charge of the property and administer the same according to law. The administration law makes no distinction between general and special administrators, and fixes their compensation at five per cent., which cannot be altered by the court. 1 Wag. Stat., p. 108, § 9 ; Me Whorter v. Benson, 1 Hopk. 28 ; Vanderheyden v. Vanderheyden, 2 Paige 287.

— Hoi 1. The liability of the defendant is not to be determined by the time the original petition was filed; nor by the date of payment by the plaintiffs Maupin, Breckinridge and Whitson, of the Burke judgment, but by the note, and the time when these plaintiffs first appear in the ■action. As .more than ten years had elapsed before they became parties, they are barred by statute.

— Mon. Wildiam T. Wood, J lid ge. If after the alleged sale, the vendor remained' in apparent possession and control of the goods, exercising apparent ownership and control over the same, it makes no difference-.whether this was with or without the consent of the vendee. The law only takes notice of the facts as they appear to the public. Bump on Fraud.

<p>Appeal prom, Cape Girardeau Court of Common Pleas.— Hon. II. Q-. Wilson, Judge.</p>

— Hon. H. G. Wilson, Judge. 1. The contract did not vest any legal estate in the land. It contained no operative words of conveyance, and without such words in praesenti, the plaintiff could not recover. McKinney v. Settles, 31 Mo. 544; 2 Wash. Real Prop., p. 619. 2. The estate settled upon the wife was ■simply an equitable jointure, to be enjoyed by her after her husband’s decease for her own life only, in lieu of dower. Coke’s Litt., 36, 6; 1 Wash.

<p>1. Condemnation of Right of Way: prior contract por location op a road. Thef ct that a corporation authorized to construct a macadamized road and to condemn land for that purpose, has contracted with the owner of a tract of land for the construction of its road across his land on an agreed line, and has partly constructed it. on that line, is no bar to a proceeding by the corporation to condemn a right of way across the same land on a different line. The1 corporation may change the location of its road, if it sees fit, subject to the right of the other party to recover such damages as he may sustain by reason of the breach of contract.</p> <p>2. -: evidence: damages: practice. It is the duty of the circuit court, on exceptions filed, to hear testimony if offered as to the adequacy of the compensation awarded land owners for land taken for the construction of roads; the Supreme Court will review the action of the circuit court only when the compensation is flagrantly excessive or inadequate.</p> <p>3. -: section 1, p. 351, gen. stat., 1865, applies to corporations created by special laws, and authorizes them to condemn land for road purposes. It does not apply exclusively to corporations created under the general law.</p>

— PIon. Joseph Cravens. Judge. The appellant did not possess the power to subject the land to the lien of a mechanic or material man. It had» in and over the land, a mere right of way for its railroad, and could only use the land for the purposes of the grant. Proprietors v. Nashua $• Loioell. B. B. Co., 104 Mass. 1; San Francisco v. Caldercood, 31 Cal. 585; Warren v. Lyons City, 22 Iowa 351; Washb. on Easm. & Serv. p. 1, clause 12.

— How. W. F. Geiger, Judge. 1. Authority given to a county court to subscribe stock to a railroad and issue bonds does not constitute a contract or vested right until the subscription is actually made, 1 Dillon Munic. Corp., § 42; U. P. R. R. Co. v. Davis Co., 6 Kas. 256; County of Dallas v. MacKenzie, 94 U. S. 660; Aspinwall v. County of Daviess, 22 How. 864; People v. Coon, 25 Cal. 685; State v. Saline Co., 45 Mo. 242.

— Hon. Gilchrist Porter, Judge. Ejectment to recover the s e qr., n e qr., Sec. 35, T. 51 R 9 w., in Audrain county. Plaintiffs claimed as children and heirs at law of John G. Muldrow, deriving title through him from George E. Muldrow, their grandfather, under the deed set out in the opinion. Defendant claimed through a deed from John G. Muldrow. At the trial in the circuit court the defendant requested the court to declare, as matter of law, that the deed from Geo.

<p>1. Vendor’s Lien: independent security: meaning op the word “ due.” A contract for the sale of land fixed certain sums to he paid by the purchaser at specified dates, and, in addition, provided that he should pay one of the vendors the amount for which he (the vendor) might be liable as surety on a certain guardian’s bond, as soon as the same should be ascertained and known, by note and security. It further expressly reserved liens on the land for “all said sums of money due” from the purchaser to the vendors. In a suit by the vendor who was liable on the bond, to enforce a lien for the amount of his .liability, which had, in the meantime, been ascertained, Held, 1st, that the word due was used in the sense of owing, and referred to this unascertained liability as well as to the fixed sums contracted to be paid, and the vendor’s lien was reserved for all alike; 2nd, that, being express^ reserved, the lien could be enforced notwithstanding the contract called for other security in addition. The rule that when the vendor requires independent or collateral security for the purchase money, he will be deemed to have waived his equitable lien, does not apply to such case.</p> <p>2. Statute of Limitations: written promise to pay. Ten years, and not five, is the period of limitation against a promise in writing to pay a sum of money to he subsequently ascertained. The five year limitation applies where the writing is of such a character that evidence aliunde is required to show a promise to pay.</p>

<p>Error to Cape Girardeau Circuit Court. — Lton. D. L. Ilawkins, Judge.</p>

<p>Error to Filie Cireuit Court. — Hon. Gilchrist Porter, Judge.</p> <p>L. S; D. B. B. Co. v. Platte Co., 42 Mo. 171; Dillon Munic. Corp. §§ 61, 62; Newburgh Turnpike Go. v. Miller, 5 Jolm. Oh. 113; Bradley v. West, 60 Mo. 33; Wag. Stat., 391, § 81; 16 Am. Law Reg. 25; 41 Md. 446.</p>

— Hon. Joseph P. Grubb, Judge. Suit commenced March 19th, 1875, on a promissory note dated June 15th, 1860, and payable one day after date. In 1871 and 1872, plaintiff employed defendant to break land and build a fence for him, for which plaintiff was to allow defendant a credit of $32. Plaintiff' claimed that this credit was to be given, and was given on the note in suit.

<p>Appeal from Montgomery Circuit Court. — Hon. G. Porter, Judge.</p>

<p>Street Improvements: how paid fok: special tax bills. Under the existing charter of the city of St. Joseph, the city is not liable for the cost of paving, macadamizing or guttering any street, not. withstanding neither the ordinance nor the contract under which the work is done specifies how it is to be paid for. The charter provides that the city engineer shall issue special tax bills against the adjoining property, and this is the contractor’s only means of payment; If the engineer fails to issue the bills, he may be compelled to perform his duty or may be held liable for his delinquency.</p>

<p>Insurance Companies: withdrawal op securities prom state treasury: mandamus. Under section 20, p. 769, Wag. Stat., an insurance company wishing to withdraw from the custody of the State Treasurer securities deposited with him in compliance with the act of March 23rd, 1874, (Acts 1874, p. 76,) must present a written order of the acting president and secretary, or of the directors, of the company, endorsed by the Superintendent of the Insurance Department, or the order of some court of competent jurisdiction; and, until such order is presented, the treasurer will not be compelled by mandamus to surrender them.</p> <p>This rule is not affected by the fact that in the State to which the petitioning company belongs foreign companies are not required to produce such order to enable them to regain their securities.</p>

— Hon. G. Porter, Judge. It is competent for the Legislature to make a conveyance of laud sold for taxes, prima facie evidence that everything has been done that is required by the statute in the proceeding upon which the sale is based, and prescribe the form of the deed; and the burden of proof is the i shifted to the defendant, to show a want of conformity to the law in' such proceedings.

— Hon. G-. II. Burckhártt, Judge. 1. Nesbit could sell upon the individual note of the purchaser; if so, he might sell upon his oral promise to pay, as well. Jarvis v. Russick, 12 Mo. 63; Foster v. Thomast 1 Am. Law Reg., (O. S.) 565. 2. The report of sale should have been made at the next term of court after such sale.

— IIon. Jos. P. Grubb, J udge. The following are instructions Nos. 3, 4 and 5 offered by defendant and refused by the court: 3rd.

— IIon. George W. Dunn» Judge. The assessor of Clinton county having assessed against House a tax on his capital invested in the banking business, he filed a. petition for relief in the county court, claiming that the tax was illegal, (1) because he was not a. resident of Clinton county, but resided with his family in DeKalb county, and his personal property, if taxable at all, was taxable only in that county, and (2) because his capital consisted of non-taxable Hnited…

The petition in this case set forth that the defendant, Gideon Mitchell, being largely indebted to the plaintiffs on promissory notes, on which the defendants, Joab Mitchell and Gary, were sureties, on the 26th day of January, 1874, executed to said Joab Mitchell and Cary a mortgage on certain lands in Marion county, by way of indemnifying them against any payments they might have to make on said notes.

<p>1. County Treasurer: new bond required when old bond is insufficient: release of sureties in old bond: voluntary bond.. The additional security which sections 23, 24 and 25, p. 1306, Wag.. Stat., make it the duty of the county court to require of a county' treasurer, when his official bond becomes insufficient, is a single-bond in the sum of not less than $20,000. The acceptance of several bonds aggregating that sum is not a compliance with the law, and will not have the effect of releasing the sureties in the old bond. Such obligations will, however, he good as voluntary bonds, and the sureties in them will be liable for the treasurer’s defalcations.</p> <p>2. County Treasurer: effect of giving additional bond. An additional bond given by a county treasurer, in obedience to an order of the county court, to secure the faithful performance of his official duties; does not secure the county merely against defalcations in excess of the amount of his original bond, but against any that may occur, and is to he treated as a concurrent security with the original.</p>

<p> Petition for Habeas Corpus. </p>

— Hon. Gilchrist Porter, Judge. The plaintiff, claiming that he had received from the Mexico Southern Bank in part payment of a check on that bank, a United States treasury note for fifty dollars, which afterwards turned out to be a counterfeit, sued to recover the amount.

<p>Error to Pike Circuit Court. — Hon. Gilchrist Porter, Judge.</p>

<p>1. Measure of Sureties’ Liability on Injunction Bond: action. The obligation of the sureties in a statutory injunction bond is not to pay all damages that the injunction may occasion to the defend' ant, but to pay such as the court shall, upon the dissolution of the injunction, adjudge against the plaintiff; and until they have been adjudged, no action can be maintained on the bond.</p> <p>2. Practice: principal and surety. It is no abuse of the discretion of the trial court to permit the plaintiff to dismiss his suit as to the principal in a bond, while continuing to prosecute' it against the sureties. 2.</p>

— I-Ion. Jos. P. Grubb, Judge. 1. Parol evidence was admissible for the purpose of proving that a clerical error had been made in entering the order of adjournment of the probate court, and that the adjournment was in fact to the 18th and not to the 19th. 2.

<p>1. Lands and Land Titles: claim to land, susceptible of confirmation. The concession to Camp and Reilhe, by die Spanish Lieutenant-Governor, of date December 3rd, 1796, and a survey of the land so conceded on the 31st day of December, 1796, by the Spanish Surveyor-General, constitute a claim upon which the act of Congress of July 4th, 1868, relinquishing the title of the United States to the legal representatives of C. & R., can operate; and there is * no material difference between such a relinquishment and one to O. & R., or their legal representatives.</p> <p>2. -: -: evidence of such olaim. The recitals of' such concession and survey in a grant, complete in form, by the Spanish Intendant-General to O. & R., of the land so conceded, in fee simple, of date June 19th, 1802, although such grant be invalid because made after the treaty of St. Ildefonso, of October 1st, 1800, are evidence of the concession and survey sufficient to justify the operation of the act of 1868 as a confirmation.</p> <p>3. -: ji’nair v. hunt, 5 mo. 300, affirmed. It was virtually decided in McNair v. Hunt, 5 Mo. 300, that the respondents are the legal representatives of Reilhe, and this court declines to review that decision</p>

— Hon. G-. TI. Burckiiartt, Judge. The lien is a personal right given under our statutes (Wag. Stat., § 1, p. 907,) to “ every mechanic or other person who shall do or perform any work or labor upon, or furnish any materials,” &c., and the right to create it cannot be transferred or assigned to another. Roberts v. Fowler, 3 E. D. Smith (N. Y.) 632 ; 4 Abb. Pr. 262; Hubbell v. Shryor, 14 Abb. Pr.

Joseph P. Grubb, Judge. argued that.tke burden was upon the defendants to prove that the testator had sufficient capacity to make a will, and that they had failed to do this, citing Clarke v. Fisher, 1 Paige, 171; Swine-burn e, pt. 2, § 25, pi. 5 ; 1 Redfield on Wills, 96, 130-132; Delgfield v. Parish, 25 N. Y. 35 ; Parton v. Williams, 2 Curiéis 530; Parke v. Ollatt, 2 Phillim. 323 ; Barry v. Butlin, 2 Moore Privy C. 480; Shropshire v. Reno, 5 J. J. Marsh. 91; Marsh v.…

<p>Practice, Supreme Court. Where a judgment is reversed and the cause is remanded, with special directions to the trial court as to its further proceedings, and such court proceeds in conformity with the directions, its judgment will be affirmed.</p>

<p>1. Ejectment- general issue- evidence or advancements. Where plaintiffs in ejectment claim as pretermitted heirs, defendant will not be allowed to show under the general issue that they have received advancements and that he has made improvements on the land. To be available for any purpose, these facts must be pleaded.</p> <p>2. —-: adverse possession • pretermitted heirs, Where defendant in ejectment claims under a will by the terms of which the land was to become his absolute property upon the death of his mother, no possession which he may have held under the testator or after-wards during the life of his mother can be considered as adverse to pretermitted heirs of the testator.</p> <p>3. -: pbetebmitted iieibs may maintain ejectment for their inheritance.</p>

<p>Appeal from Scott Circuit Court. — TIon. D. L. Hawkins, Judge.</p>

— IIon. William T. Wood, Judge. There was testimony in the ease on the part of the defendant tending to prove that when the note in suit was .executed by defendant it was blank, as to amount, name of payee and time and place of payment, and the other makers had not signed it. 1.

<p>Error to Louisiana Court of Common Pleas. — IIon. Gilchrist Porter, Judge.</p>

<p>Appeal from, Lafayette Criminal Court. — The case was tried before William Walker, Esq., sitting as temporary or special judge.</p>

— Hon. G. W. Miller, Judge. John Cosgrove for appellants, made tbe following, among other points : At the death of Fanny Bowles the title of the real estate in question vested in appellants by operation of law. (Wag. Stat., p. 529, § 1.) They owed Jackson nothing at that time. More than two months afterwards they gave their note to Jackson and took up her note. Certainly there was no debt owing by them to respondents at the time they became seized of the premises in suit.

<p>1. Practice, Civil: pleading : partners. The common-law rule which prohibited recovery against any one of several defendants sued as joint contractors, unless the proof showed a'joint contract, has been abrogated by section 32, p. 1019, Wag. Stat. Under that section a plaintiff, suing several as partners for breach of contract, may recover against such as he can prove to be parties to the contract without proof of the partnership.</p> <p>2. An Instruction which ignores an issue in the case should not he given.</p> <p>3. Damages: an instruction which fails to limit the amount of damages that, may he assessed by the jury to that claimed in the petition is objectionable.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Jos. P. Grubb, Judge.</p>

<p>Appeal from Webster Circuit Court. — Hon. R. W. Eyan, Judge.</p> <p>cited, as to the sufficiency of the indictment, Gouglemann v. The People, 3 Park. Or. 15; State v. Scott, 72 N. C. 461 ; Sullivan v. State, 3 Eng. Rep. 400; Com. v. Bennet, 2 Ya. Cas. 235 ; 1 Russell on Crimes, (2 Ed.) 686; Bishop on Stat. Crimes, § 484.</p> <p>cited State v. Montgomery, 63 Mo. 296; State v. Weber, 22 Mo. 321; State v. Braunschweig, 36 Mo. 397; State v. Connell, 49 Mo. 282.</p>

<p>Error to Jasper Court of Common Pleas. — Hon. E. O. Brown, Judge.</p>

<p>Pigeon-hole Table: an indictment for keeping, &c., a pigeon-hole table without license is sufficient if it charges the offense in the language of the statute which creates it. Wag. Stat., p. 213, § 7.</p>

— Hon. R. W. Fyan, Judge. The house having been built with the knowledge and consent of Mothershead, it was personal property, and clothed with all the incidents of personalty. Matson v. Calham, 44 Mo. 368; Hines v. Ament, 43 Mo. 298; Aldrich v. Parsons, 6 N. IT. 555 ; Osgood v. Howard, 6 Greenl. 452; Ashman v. Williams, 8 Pick. 402; Doty v. Gorham, 5 Pick. 489; Mott v. Palmer, 1 Comst. 571; Rogers v. Woodbury, 15 Pick. 156; Coleman v. Lewis, 27 Penn. St. 291.

<p> Petition for Habeas Corpus. </p> <p>cited upon the first point: Pom. Const. Law, pp. 364, 369, 370 and 378; Woodruff v. Trapnqll, 10 How. 190; Home of the Friendless v. Bouse, 8 Wall. 430; State of New Jersey v. Yard, 95 U. S. 104.</p>

Appeal froni Benton Circuit Court. — Hon. Wm. S. Shirk, Judge, The doctrine sought to be established here is simply this: That any citizen may be tried for any offense, no matter how heinous it may be, upon the affidavit of an ex-prosecuting attorney that the paper on which he is tried is, in substance, a copy of an indictment found against him by the grand jury. This affidavit has not even the sanction of an official position or oath.

<p>Appeal from Jackson Circuit Court. — Hon. Samuel L. Sawyer, Judge.</p>

<p>1.Bill of Exceptions. The motion for a new trial must be incorporated in the bill of exceptions.</p> <p>2.Infancy: practice. It is competent for a court to permit one who comes of age pending a trial to join in the suit as a co-plaintiff.</p> <p>3. -: curator : next friend : waiver : jeofails. A curator may bring a suit for his ward, but if it were necessary that it should be brought by next Mend, the objection would be deemed waived, unless taken by demurrer or answer, and, after verdict for the plaintiff, the error would be cured by the statute of jeofails. Wag. Stat., section 19, page 1036.</p>

<p>1. Interest: promissory note. Ten per cent, interest will not be allowed. on a note that does not call for that rate.</p> <p>2. Wife, Competency as a Witness: agency. In order to make the testimony of a married woman admissible in a suit to which her husband is a party, on the ground that she acted as his agent in the transaction to which it relates, the fact of her agency must be shown by some competent witness, and she is not a competent witness for that purpose. Chesley v. Chesley, 54 Mo. 347, disapproved.</p> <p>3 Contract: nudum pactum: consideration: delivery. One who becomes party to a note, after it has once been delivered and the consideration has passed between the original parties, incurs no liability, unless there is some new consideration and a redelivery of the note. The fact that he signs in the presence of the holder does not, by itself, amount to redelivery.</p>

<p>Appeal from Buchanan Circuit Court — Hon. Joseph P. Grubb, Judge.</p>

<p>Appeal from Buchanan Circuit Court — Hon. Joseph P. Grubb, Judge.</p>

<p>Appeal from, Hannibal Common Pleas Court. — IIon. John T. Redd, Judge.</p>

<p>1. Corporation: stockholder’s liability: powers of sheriff act ing as receiver. A sheriff, acting as receiver of the effects of a corporation by virtue of an appointment made by the court under Gen. Stat. 1865, secs. 20 and 21, p. 642, (Wag. Stat., p. 606,) has no power, by suit in his own name, to enforce the liability of a stockholder to the corporation for unpaid stock which is not due accord ing to the terms of his subscription, and for which no call has been made by the directors. The subscription which creates his liability is not an evidence of indebtedness to the corporation within the meaning of these sections of the statute, and it is only, evidences of indebtedness that they allow him to sue upon and collect. The power to enforce such liability cannot be conferred upon the sheriff by an order of ciurt, or by an agreement among the judgment creditors of the corporation.</p> <p>2. Stockholder’s Liability, how Enforced: execution: garnishment. The liability of a stockholder in a bank for unpaid stock which is not due according to the terms of his subscription and for which no calls have been made by the directors, cannot be seized and collected under an execution against the bank. In a proceeding at law for the satisfaction of a judgment, such liability can only be reached by a special execution awarded under the statute, against the stockholder himself, in default of assets of the bank whereon to levy. Gen. Stat. 1865, p. 328, sec. 11; Wag. Stat., p. 291, sec. 13. Bui if the stockholder is in default to the bank for installments due on his stock, or for calls made by the directors, he stands in the attitude of any other debtor to the bank, and his debt may be seized and collected by suit, under execution against the bank, or it may be reached by garnishment.</p>

<p>Appeal from Buchanan Circuit Court. — JIon. Joseph P. Grubb, Judge.</p>

<p>Appeal from Benton Circuit, Court. — Hon. Wm. S. Shirk, Judge.</p>

<p>1. Place of Recording Deed: presumption. A deed to land within the limits of the present county of Jefferson was recorded in 1808 in St. Louis distiict. In the absence of evidence as to the boundaries of the districts as they existed at that time, it was held that the court would presume that the deed was properly recorded in that district.</p> <p>2. Proof of Ancient Recorded Deeds: statutes in force. Sections 35 and 36 of the chapter on evidence, (Wag. Stat., page 595,) permitting a certified copy of a deed recorded thirty years before the first day of January, 1867, to be read in evidence without proof of the execution of the original, whether it was properly acknowledged or not, have not been repealed by the act of March 28th, 1874. (Acts 1874, page 59.)</p> <p>3. Spanish Land Titles: transfer to the united states. An order of survey made by the Spanish Lieutenant-Governor in the year 1799, and a survey made in the same year in pursuance of the order, together with inhabitation and cultivation of the premises by the 'grantee and his family, did not vest in him a complete title. In order to pass this out of the Crown of Spain, certain formalities prescribed by the Intendant-General, under the authority of the royal order of October 22nd, 1798, had to be complied with. Where this had not been done, the title of the grantee remained inchoate, and the legal title passed, upon the acquisition of Louisiana, to the United States.</p> <p>4. The Statute of Limitations does not begin to run in favor of one in the possession of land until the legal title has emanated from the Government. Gibson v. Chouteau, 13 Wall. 92, &c.</p>

— Hon. Joseph Cravens, Judge. This was a proceeding by mandamus instituted on behalf of school district No. 2, township 28, range 29, Jasper and Lawrence counties, against the justices of the county court and the county clerk of Jasper county, to compel the justices to rescind an order of the county court whereby they had undertaken to prevent the elei’k from extending certain school taxes within the district, and to compel the-clerk to proceed and extend them according to…

<p>Appeal from, Clinton Circuit Court. — Hon. Geor&e ~W. Dunn, Judge.</p>

<p>Appeal from Pettis Circuit Court. — Hon. Wm. T. Wood, J adge.</p> <p>cited Sedg. on Ham., (6 Ed.) side p. 82, note 2; Boland v. Missouri River R. R. Co., 36 Mo. 491; Barton v. St. Louis Iron Mountain R. R. Co., 52 Mo. 259; Costigan v. M. $ H. R. R. Co., 2 Hen. 609; Ryan v.'N. Y. Cent. R. R. Co., 35 N. Y. 216; Clemens v. H. $ St. Jo. R. R. Co., 53 Mo. 370; Fent v. T., P. § W. R. R. Go., 59 111. 349 ; Kellogg v. Milwaukee, ¿¡c., Ry. Co., 94 U. S. 469; s. c., 1 Cent. Law Jour. 278 ; Toledo R. R., $c., v. Muthershaugh, 71 111. 572; s. c., 7 Chic. Leg. News 131; Hooksett v. Concord R. R. Co., 38 N. EC. 246 ; Penn. R. R. Co.v. Kerr, 62 Penn. St. 353 ; Webb v. Rome, $c., R. R. Go., 49 N. Y. 425; Kellogg v. Chicago, fyc., R. R. Co., 26 Wis. 223 ; Morrison v. Davis, 8 Harris 171; McDonald v. Snelling, 14 Allen 294; Galkins v. Barger, 44 Barb. 424 ; Fahn v. Reichart, 8 Wis. 255 ; IToey v. Felton, 11 C. B. (NS.) 142; 103 E. C. L, 142 ; Daniels v. Potter, 19 E. O. L. 375.</p> <p>cited R. R. Co. v. Bales, 16 Kas. 252; s. c., 15 Am. Law Reg. (N. S.) 622; Kellogg v. Chicago, c., R. R. Co., 7 Am. Rep. 69 ; Webb v. Rome, §c., R. R. Co., 10 Am. Rep. 389; Flynn v. San Francisco, S?c., R. R. Co., 6 Am. Rep. 595 ; s. c., 40 Cal. 14 ; Fitch v. Pacific R. R. Co., 45 Mo. 322 ; Fent v. Toledo, ¿•c., Ry. Co., 6 Alb. L. J. 226 ; Bedford v. H. $* St. Jo. R. R. Co., 46 Mo. 456 ; Meyers v. Chicago, $c., R. R. Co., 59 Mo. 223.</p>

— Hon. John D. Parkinson, Judge. At the trial the court, of its own motion, gave the following instruction: If the jury find from the evidence, after the fire was set by defendant, the same was extinguished, or nearly so, and that it afterwards increased and spread over a great extent of territory, and finally reached the plaintiff’s promises in consequence of an extraordinary high wind springing up in the morning, and would not have reached the plaintiff’s premises but for…

<p>Appeal from Barry Circuit Court — Hon. W. E. Geiger,. • Judge.</p>

<p>Appeal from Lawrence Circuit Court. — Hon. Joseph Cravens, Judge.</p>

<p>1. Justice’s Court: statement of cause of action. The statement in a case commenced before a justice of the peace charged that “ defendant did wrongfully maim, wound and kill the hogs of • plaintiff.” The proof on the plaintiff’s partwas that defendant’s dogs were fierce, and in the habit of worrying stock, and that defendant knew of their propensity. There was no evidence that he set them on, or knew that they Were worrying plaintiff’s hogs; Held, that the statement sufficiently set forth the plaintiff’s cause of action.</p> <p>2. Certain Evidence as to the vicious propensities of defendant’s dogs; Held,-to be irrelevant.</p>